A church-state evaluation of Supreme Court nominee John Roberts

By K. Hollyn Hollman
General Counsel
Baptist Joint Committee for Religious Liberty

September 1, 2005

As the Senate Judiciary Committee conducts hearings on the Supreme Court nomination of Judge John G. Roberts Jr., the Baptist Joint Committee for Religious Liberty will be watching closely.¹ The nominee has been a judge only since 2003, serving on the U.S. Court of Appeals for the D.C. Circuit. His judicial record in general is thin; it is non-existent on the First Amendment's religion clauses.

The information released so far about his work as a government attorney, however, does offer a church-state record to evaluate. While it is risky to equate the positions a lawyer advocates on behalf of a client with the lawyer's personal position, the Roberts record on church-state law raises concerns. His briefs and comments all point in the same direction: toward lowering the wall of separation. Taken together, his statements do not bode well for the Establishment Clause and the values it was intended to protect.

What is at Stake for Religious Liberty?

Concerns about Roberts are amplified because he is nominated to replace a justice known for her support of religious liberty. One of the key legacies of Justice Sandra Day O'Connor was her contribution to church-state jurisprudence. She exhibited a profound understanding of the importance of religious liberty and the need to keep government out of religion. While the BJC has not agreed with all of her decisions, she played a crucial role in upholding the values of both non-establishment and free exercise. Her concurring opinion in a Ten Commandments case last term, McCreary County, Ky. v. ACLU, is an eloquent statement of the values the BJC holds dear.

To replace O'Connor with a justice whose views sharply differ could have dramatic effects on the law, especially because four sitting justices—Chief Justice William H. Rehnquist and justices Antonin Scalia, Anthony Kennedy and Clarence Thomas—have explicitly stated their readiness to abandon long-standing Establishment Clause standards. These justices have repeatedly called for the abandonment of the Lemon test, which the Court has used to prevent government-sponsored religion for more than thirty years without impairing the ability of government to accommodate the free exercise of religion.

To find an Establishment Clause violation, the Lemon test asks whether the government act is taken with a secular purpose; if it has the effect of advancing or inhibiting religion; and if it causes excessive government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602 (1971). Courts have used it to prevent government-sponsored religious displays, official religious exercises in public schools and government funding of religious institutions. The Lemon test, which serves the central Establishment Clause value of government neutrality toward religion, was applied most recently in the Ten Commandments case of McCreary County, Ky. v. ACLU, where the 5-4 majority included Justice O'Connor.

In place of Lemon, the minority would likely adopt a more permissive "coercion test" that would prohibit government only from establishing an official church or coercing religious practice. That change would most certainly allow for more government funding of religious activities, government-sponsored religious displays and religious activities in public schools.

The Record on Roberts and the Religion Clauses

While the evidence is not voluminous, at least as revealed to date, the record puts Roberts in the "coercion" camp, advocating positions that would weaken church-state separation and provide less protection of religious freedom.

As deputy solicitor general under President George H.W. Bush, Judge Roberts filed a brief on behalf of the government in Board of Education v. Mergens, 496 U.S. 226 (1990). The ruling upheld the Equal Access Act, a statute that makes it unlawful for any secondary public school that has a forum for certain student clubs to exclude religious clubs from that forum. The BJC supported the passage of the legislation and defended its constitutionality through an amicus curiae submission in Mergens. While the BJC agrees with the outcome in the case, we disagree with the broad arguments offered by the government, which went far beyond what was necessary to defend the statute.

In the brief Roberts submitted, he expressly urged the Court to abandon the Lemon test, arguing that it "has generated results that often obfuscate as much as they illuminate proper action under the Establishment Clause. Especially when the Lemon test is divorced from the context in which it was spawned…it sweeps within its breadth a whole range of practices and traditions with ancient roots in the history and experience of the American people." Brief for the United States, at 43.

Even more explicit were the arguments Roberts endorsed in Lee v. Weisman, 505 U.S. 577 (1992), the Rhode Island graduation prayer case. Again, writing for the first Bush Administration, Roberts argued that an official prayer at a graduation ceremony did not violate the Establishment Clause because it did not "establish any religion nor coerce nonadherents to participate in any religion or religious exercise against their will." Amicus Curiae Brief for the U.S. on Petition for Cert., at 6. The brief urged that the Lemon test be replaced "by a single, careful inquiry into whether the practice at issue provides direct benefits to religion in a manner that threatens the establishment of an official church or compels persons to participate in a religion or religious exercise contrary to their consciences." Id. at 9-10. Fortunately, the Court did not accept the government's arguments and found the government prayer at issue unconstitutional. In doing so, the Court recognized that the Establishment Clause's limit on state interference with religion was inspired by the lessons of history. It protects the freedom of conscience, whereas "[a] state-created orthodoxy puts at grave risk that freedom of belief and conscience which are the sole assurance that religious faith is real, not imposed." Weisman, 505 U.S. at 592.

While serving as an associate legal counsel for the Reagan White House from 1982 to 1986, Roberts wrote a memo to White House Chief Counsel Fred F. Fielding explaining the Supreme Court's decision in Wallace v. Jaffree, 472 U.S. 38 (1985), a ruling that struck down an Alabama law requiring a moment of silent prayer in public schools. At the end of the memo, he shared his analysis of Justice Rehnquist's dissenting opinion in the case. Roberts said that Justice Rehnquist likely began writing for the majority but then lost them because of the breadth of his opinion, which was an effort to abandon Lemon and "revolutionize Establishment Clause jurisprudence." Roberts seemed to indicate that, at least at that time, he supported such dramatic change, as his memo concluded: "Which is not to say the effort was misguided. In the larger scheme of things what is important is not whether this law is upheld or struck down, but what test is applied." (John G. Roberts Memo to Fred F. Fielding, June 4, 1985).

Later that year Roberts was asked about a proposed constitutional amendment on school prayer, which was offered in response to the Wallace ruling. Roberts noted that he would expect the Department of Justice to support the effort since it had taken a similar position in the case. He said: "I would have no objection to such a position statement. Many who do not support prayer in school support a 'moment of silence' (including Senator Biden), and the conclusion in Jaffree v. Wallace that the Constitution prohibits such a moment of silent reflection — or even silent 'prayer'— seems indefensible." (John G. Roberts Memo to Fred F. Fielding, November 21, 1985). While it is true that some moment of silence laws are constitutional, the Wallace decision is certainly defensible. The Court's decision was based on the lack of secular purpose for the legislature's change of existing law, which already provided for a moment of silence, with the explicit purpose of promoting prayer in the public schools.

Other evidence from Roberts' career, such as responses to draft administration speeches or comments on court decisions in the press, show sympathy for more relaxed standards for religious activity in the public schools, such as religious displays or prayer at school events. Also among the more than 50,000 documents released is evidence of Roberts' aggressive position on "court-stripping." As an attorney at the Justice Department in the Reagan administration, he was asked to review a number of bills pending in Congress that would have precluded the federal courts from hearing cases on specific issues, therefore depriving litigants of a federal forum. While the Reagan administration ultimately did not support these measures, Roberts concluded that Congress could constitutionally take that action and seemed to endorse such statutes. Roberts' opinion on the topic has particular resonance in today's legislative climate where "court-stripping" again seems to be gaining popularity. It is, of course, a concern to religious minorities who are most vulnerable to overreaching by majority religious groups and dependent on the federal courts for protection of their individual liberties.

We have not seen writings that provide evidence of Roberts' views on the Free Exercise Clause. It is less likely that he would have a dramatic impact there. If he were to support Employment Division v. Smith, 494 U.S. 872 (1990), he would merely strengthen that majority. If he were to vote to overhaul Smith and restore a higher level of protection for free exercise, he would simply be replacing Justice O'Connor's votes against Smith.

Conclusion

The confirmation hearings provide a critical opportunity for the Senate Judiciary Committee to question Judge Roberts about his judicial philosophy and commitment to specific constitutional values. In light of his experience on church-state matters, it is important that he demonstrate an understanding of the religion clauses and how they have protected religious liberty for all. While it is increasingly common in political debates to hear arguments suggesting that strong protections under the religion clauses are "hostile" to religion, experience shows otherwise. The Establishment Clause protects against the overreaching of religious majorities that would use government to promote particular beliefs, trampling on the religious rights of others. Just as important, government neutrality, which the Lemon test serves, protects against government's tendency to co-opt and corrupt voluntary religious practices.

To the extent that Roberts aligns himself with the four sitting justices who oppose current Establishment Clause standards, he should be prepared to answer the difficult question posed by Justice O'Connor to those who would renegotiate the boundaries between church and state: "Why would we trade a system that has served us so well for one that has served others so poorly?"

If the work Roberts did on behalf of the government reflects his own views — and it is troubling that no evidence points in the other direction — his confirmation could lead to the end of Lemon and the beginning of an era of church-state law with a much weakened Establishment Clause.

¹ Although the BJC does not endorse or oppose candidates for office (elected or appointed), we do examine and critique their church-state records.